Employment Agreement, dated September 5, 2003



 





Exhibit 4.9




Guangxi Yuchai Machinery Company Limited




 




 




Chief Executive Officer

Employment Contract




 









 






This Employment Agreement is made on September 5, 2003 by and between the
following two parties:





	 	 	Guangxi Yuchai Machinery Company Limited, which is a company organized
under the laws of the People’s Republic of China (the “PRC”) with
Registered Address of Da Niu Wo, Yulin, Guangxi Zhuangzhu Municipality,
the PRC (hereafter refer to as the “Company”)
	 
	 	 	Mr. Wang Jianming, with Personal Identification Number of
[452501194609270711] (hereafter refer to as the “Employee”)
	 
	 	 	In consideration of the respective rights and obligations, the parties
hereby agree as follows:




Section One: Employment



     The Company agrees to employ the Employee, Mr. Wang Jianming as the Chief
Executive Officer, whereas the Employee agrees to be employed by the Company,
with the term of employment as stated in Section 2 of this Agreement, as its
Chief Executive Officer with duties and responsibilities as specified in the
Articles of Association of the Company or as otherwise determined by the Board
of Directors of the Company. Within the employment term, the Employee agrees:




	 	1.	 	if elected or appointed, to serve as a Director of the Board of
Directors of the Company, as well as to serve, as a member of any
Committee thereof;
	 
	 	2.	 	To assist as required by the Company in other duties or tasks
within the scope of the Employee’s normal duties hereunder.




Section Two: Term




	 	1.	 	Term of employment is six years. When the term of
employment ends, the parties may agree to extend this Agreement.




 









 






	 	2.	 	The above specified term of employment shall commence on the
date of passing the Board of Directors’ Resolution approving Mr. Wang
Jianming to be employed by the Company as its Chief Executive
Officer.




Section Three: Duties




	 	1.	 	The Employee shall devote his full business time, attention and
best efforts to the affairs of the Company during the term of this
Agreement; provided however, that the employee may engage in other
activities, such as activities involving professional, charitable,
educational, religious and similar types of organizational activities
to the extent that such activities do not inhibit or prohibit the
performance of the Employee’s duties under this Agreement, or conflict
with the business of the Company, its subsidiaries or affiliates.
	 
	 	2.	 	The Employee shall not, during the term of this Agreement (except
with the prior written consent of the Board of Directors of the
Company), permit the Employee’s name to be used by, or engage in, or
carry on, directly or indirectly, either for the Employee or as a
member of a partnership or as a stockholder, investor, officer or
director of a corporation or as an employee, agent associate or
consultant of any person, partnership or corporation, any business in
competition with the business carried on by the Company or any of its
subsidiaries or affiliates.
	 
	 	3.	 	The Employee shall take such necessary steps that are within the
Employee’s power, during the term of this Agreement, to ensure that the
business of the Company and any of its subsidiaries or affiliates (to
the extent of the Company’s control in such affiliates) is conducted in
accordance with all applicable laws and regulation of all jurisdictions
in which the Company or any of its subsidiaries or affiliates (to the
extend of the Company’s control in such affiliates) carry on business.
	 
	 	4.	 	In addition to the duties and responsibilities set forth in
subsections (1), (2) and (3) above, the Employee shall also have the
additional duties and responsibilities set forth in the Articles of
Association of the Company or as may be specified by the Board of
Directors of the Company.






 









 





Section Four: Compensation




	 	1.	 	Basic Monthly Salary





	 	 	During the term of this Agreement, the Company shall pay to the Employee
pre-tax monthly salary of RMB40,000 to compensate for performing the duties
of the Chief Executive Officer, payable pursuant to the Company normal
payroll practices, effective on the date of passing the Board of Directors’
Resolution approving Mr. Wang Jianming to be employed by the Company as its
Chief Executive Officer.





	 	2.	 	Bonus





	 	 	The Company will pay to the Employee an incentive bonus in RMB in the amount
of 2.5% of the Company audited net after tax profit for each fiscal year
concerned ending December 31 (excluding any extraordinary gains) (please
clarify the meaning of “any extraordinary gains”, is it means that “net
after tax profit” refers to net after tax profit of main operating income,
excluding any other operating income, investment income and other incomes?)
determined in accordance with (“US GAAP’) on the basis of the Company then
independent auditors (which shall be an accounting firm of recognized
international standing) (the “Independent Auditors”), subject to the
satisfaction of each and all of the following conditions:





	 	(1)	 	Sales of the Company diesel engines for such fiscal
year be equal to or exceed 80% of the Board Approved Budgeted unit
sales for the relevant fiscal year, and the Company shall have
received written evidence from independent auditors as to the
foregoing that is satisfactory to the Board of Directors;
	 
	 	(2)	 	The Company net after tax profit for such fiscal year
determined in accordance with US GAAP on the basis of The Company
audited financial statements, as audited by the Independent
Auditors, should not be less 80% of the Board Approved Budgeted
net profit after tax for the relevant fiscal year;
	 
	 	(3)	 	The Company’s total accounts receivable before any
provision for doubtful and bad debts as at December 31 each year
as per the audited accounts as at that date less bank issued trade
bills receivable shall be less than the amount equal to four times the





 









 








	 	 	 	average monthly sales of the Company achieved in such fiscal year and
the Company’s total accounts receivable from the Second Auto
Company (“SAC”) after any provision for doubtful and bad debts
as at December 31 each year as per the audited accounts as at
that date less bank issued trade bills receivable from SAC shall
be less than the amount equal to four times average
monthly sales of the Company to SAC in the fiscal year, and the
Company shall have received written evidence from independent
auditors as to the foregoing that is satisfactory to the Board
of Directors;
	 
	 	(4)	 	The number of the Company employees shall not exceed
5% of the employment budget as determined by the Board of
Directors for each fiscal year or otherwise determined by the
Board of Directors or other adjustments as approved by the Board
of Directors, and the Company shall have received written evidence
from independent auditors as to the foregoing that is satisfactory
to the Board of Directors; for purposes of this clause (iv),
“employees” shall include inactive employees of the Company (e.g.,
retrenched workers, medically unfit workers, workers in the
process of being trained, etc.).
	 
	 	(5)	 	The Company’s total employment expenses for each
fiscal year shall not exceed 5% of the budget or adjusted budget
for each fiscal year, and the Company shall have received written
evidence as to the foregoing that is satisfactory to the Board of
Directors.
	 
	 	(6)	 	Total non-trade amounts owed by the State Holding
Company and its subsidiaries to the Company as at December 31,
2003 shall be reduced to zero, except otherwise determined by the
Board of Directors, and thereafter shall be maintained at zero at
the end of the fiscal.



The incentive bonus shall be paid to the Employee within 21 business days after
the approval of the last year’s audited financial reports by the Shareholders
Meeting of the Company have been made.



In the event of any dispute between the Company and the Employee as to the
interpretation of this Section 4-2 or the calculation of the foregoing
incentive bonus, such dispute shall be resolved by the Independent Auditors and
such resolution shall be final and binding on the Company and the Employee.




 









 







Section Five: the Employee’s Other Benefits




	 	1.	 	Vacation





	 	 	The Employee shall be entitled to four weeks of paid annual vacation with
the approval of Executive Committee of the Board of Directors.





	 	2.	 	Free Housing





	 	 	The Company shall provide housing in Yulin City for the Employee. The
Company shall also bear the costs with respect to the hiring of domestic
help as well as all telephone charges (other than private overseas calls
which shall be the responsibility of the Employee) and all other running
costs such as utilities, electricity, fuel, lighting, water and maintenance
of the premises.





	 	3.	 	Car





	 	 	The Company shall provide the Employee with the use of a company car
together with a driver for the conduct of the Employee’s duties hereunder
and for the Employee’s personal use. The Company shall pay all expenses in
connection with the use of the car, including road tax, insurance,
maintenance and fuel. The Employee shall take good care of the car and
ensure that the provisions and conditions of any insurance policy relating
to it are observed and shall return the car in good condition (fair wear and
tear excepted) and its keys to the Company immediately upon the cessation of
his employment howsoever arising.





	 	4.	 	Healthcare Plan





	 	 	The Company shall arrange for membership in a healthcare plan for the
Employee, the Employee’s spouse and the Employee’s children under 18 years
old, whereby the Company shall bear all essential medical costs (including
costs of specialist treatment and hospitalization costs, but only if
requested by physicians) incurred by the Employee, the Employee’s spouse and
the Employee’s children under 18 years old.



 









 










	 	5.	 	Other Benefit and Compensation Plans





	 	 	The Employee shall be entitled to all other benefits and compensation as
the Board of Directors of the Company shall determine from time to time.





	 	6.	 	Life and Disability Insurance





	 	 	The Company shall arrange term life and disability insurance cover for and
shall pay the premium for such cover for the Employee in an insured
amount up to a maximum of US$1 million, inclusive of life insurance of
death or disability benefit coverage provided to the Employee under any
other benefit plans or arrangements of the Company. The Company shall not
be responsible for any payment of premium for any investment linked term
life and disability insurance policies or products.




Section Six: Certain Representations, Warranties and Covenants




	 	1.	 	Related Company Positions





	 	 	The Employee represents, warrants and agrees that:





	 	(1)	 	the Employee and members of the Employee’s immediate
family do not and will not have any financial interest directly
or indirectly (including through any entity in which the
Employee or any member of the Employee’s immediate family has a
position or financial interest) in any transactions with the
Company or any of its subsidiaries or affiliates;
	 
	 	(2)	 	The Company shall not engage in any business matters
whatsoever with Yuchai America Company; and
	 
	 	(3)	 	The Employee shall inform the Board of Directors of
the Company of any transactions with the Company or any of its
subsidiaries or affiliates in which senior officers, including
but not limited to the Employee, of the Company have a financial
interest, and shall take reasonable steps, including due inquiry
and investigation, to ensure that there are no such
transactions.




 









 






	 	2.	 	Management
	 
	 	 	 	The Employee acknowledges and agrees to execute resolutions made by the
Shareholders’ Meeting and Board Meeting, carry out the Corporate
Governance Guidelines and report to the Board of Directors of the Company
of the result on the execution of the Corporate Governance Guidelines.
The Employee agrees that the Board of Directors of China Yuchai
International Ltd. shall be entitled to appoint, from time to time,
relevant personnels to supervise the finance operations of the Company.




Section Seven: Discounts Rebates or Commissions




	 	 	Subject to any regulations issued by the Company or the Company which may be
applicable to the Employee, the Employee shall not be entitled to receive or
obtain directly or indirectly any discount, rebate or commission in respect
of any sale or purchase of goods effected or other business transacted
(whether or not by the Employee) by or on behalf of The Company or any of
its subsidiaries or affiliates, and if the Employee (or any firm or company
in which the Employee is interested) shall obtain any such discount, rebate
or commission, the Employee shall account to the Company for the amount
received by the Employee (or the proportionate amount received by any such
firm or company to the extend of the Employee’s interest therein).




Section Eight: Termination




	 	1.	 	This Agreement will terminate automatically upon situations where
the Employee loses his civil rights or incapacitated of such
appointment or prohibited under the laws of such appointment;
	 
	 	2.	 	Termination by the Employee
	 
	 	 	 	Notwithstanding anything herein to the contrary, the Employee may, by
providing the Company with six (6) months advance written notice,
terminate this Agreement effective as of the expiration of such six (6)
months period. The Company may terminate this




 









 





	 	 	 	Agreement by providing the
Employee with written notice before the expiration of such six months period. The
Employee shall cooperate with the Company to complete hand-over works.
	 
	 	3.	 	Termination by the Company
	 
	 	 	 	Notwithstanding anything herein to the contrary, the Company may, by
providing the Employee with sixty (60) days advance written notice,
terminate this Agreement effective as of the expiration of such sixty
(60) day period.
	 
	 	4.	 	Compensation upon Termination
	 
	 	 	 	In the event this Agreement is terminated in accordance with subsections
2 or 3 above, the Employee shall be entitled set forth in Section 4-1
through the end of the month in which this Agreement is terminated.
	 
	 	5.	 	Notwithstanding any termination of this Agreement, all stipulations
under Sections 10 and 12 shall still be effective and enforceable.




Section Nine: Financial Penalty




	 	 	If during the term of this Agreement, the Employee fails to comply with the
terms of this Agreement or the corporate governance requirements of the
Articles in the Articles of Association of the Company, including, but not
limited to, acting against the specific instructions of the Board of
Directors of the Company (each a “Penalty Breach”), the Board of Directors
of the Company shall determine the penalties for the Employee.
	 
	 	 	Notwithstanding the foregoing, the Employee shall not be deemed to have made
a Penalty Breach unless and until there shall have been delivered to the
Employee a copy of a resolution or unanimously consent duly adopted by the
affirmative vote of not less than a simple majority of the entire incumbent
membership of the Board of Directors of the Company at a meeting of such
Board of Directors called and held (after reasonable notice to the Employee
and an opportunity for the Employee, together with the Employee’s counsel,
to be heard before such Board of Directors) for the purpose of determining
whether the Company has just cause to impose a financial penalty on the
Employee.




 









 





Section Ten: Not-Disclosure




	 	 	The Employee shall not at any time during or after the term of this
Agreement, disclose, use, transfer or sell, except in the course of
employment with the Company, any confidential information or proprietary
data of The Company or any of its subsidiaries and affiliates (in particular
lists or details of customers of the Company (both current and those who
were customers during the previous five years)) so long as such information
or proprietary data remains confidential and has not been disclosed or is
not otherwise in the public domain, except as required by law or pursuant to
legal process. Upon termination of the Employee’s employment for any reason
whatsoever, the Employee shall deliver to the Board of Directors of the
Company documents (including correspondence, lists of clients or customers,
notes, memoranda, plans and other documents of whatsoever nature) made or
compiled by or delivered to the Employee during the Employee’s appointment
hereunder and concerning the business, finances or affairs of the Company
and its subsidiaries and affiliates.




Section Eleven: Non-Competition Agreement




	 	1.	 	Without consent of the Board of Directors of the Company,
during the term of the Employee’s employment with the Company, the
Employee shall not directly or indirectly be employed by other
business entities or participate in any other business activities,
and shall not held any financial interests in any other business
entities, if the Board of Directors reasonably determines:





	 	(1)	 	such business entities carry on businesses that are
in competition or in the tendency of competing with the
businesses carried on by the Company or any of its subsidiaries
or affiliates;
	 
	 	(2)	 	association with such business entities will damage
the reputation of the Company;
	 
	 	(3)	 	Employed by such business entities will weaken the
normal fulfillment of the Employee’s duties in his capacity as
the Chief Executive Officer.




 









 






	 	2.	 	Without prior consent of the Board of Directors, upon the
termination of the Employee’s employment for any reason whatsoever,
the Employee shall not for a period of 2 years thereafter:





	 	(1)	 	personally or through representatives participates in
any businesses (any types) that are in direct competition or in
conflicts with the businesses of the Company or any of its
subsidiaries or affiliates;
	 
	 	(2)	 	Directly or indirectly employed by or participated in
business entities (any types) that are direct competitors of the
Company or any of its subsidiaries or affiliates, as
administrative staff, technical staff, consultant or in any
other capacities.





	 	3.	 	The Employee must strictly comply with the Non-Disclosure
provisions of this Agreement, shall not participate in activities
that are or suspecting of being in conflicts with the interests of
the Company. The above-mentioned activities include, but not limited
to:





	 	(1)	 	in pursuing personally interests, deliberately or due
to severe negligence, damage the interests of the Company;
	 
	 	(2)	 	activities such as accepting or be given excessively
expensive gifts, excess payment of public relation expenses,
which may have adverse effects and damages the reputation of the
Company;
	 
	 	(3)	 	recruit the Employee’s direct relatives into the
Company without proper disclosure of such relationships;
	 
	 	(4)	 	Without authorization, communicate with business
entities or individuals other than the Company, in relation to
non-disclosure information of the Company, such as, prices,
costs, customer relations, sales and marketing etc.
	 
	 	(5)	 	engages in any other activities that may have adverse
effects or damages the legitimate interests of the Company;
	 
	 	(6)	 	Except otherwise specified in the Articles of
Association of the Company or approved by the Board of Directors
of the Company, the Employee shall not contract or trade with
the Company;
	 
	 	(7)	 	shall not engage personally or for others in the same
type of business activities as those engaged by the Company or
engage in such activities which damage the interests of the
Company;




 









 






	 	(8)	 	Shall not take advantage of the employment in gaining
or accepting commercial opportunities that should have belonged
to the Company, for himself or others.




Section Twelve: Applicable Laws




	 	1.	 	This Agreement is governed by, is to be construed, enforced and
terminated, explained and amended, in accordance with the laws of the
PRC.
	 
	 	2.	 	Any dispute, controversy or claim arising out of or in relation
to this Agreement shall be negotiated and resolved by the parties.
When it is unresolved by negotiation, any party may apply to Labor
Dispute Arbitration Committee for settlement by arbitration.




Section Thirteen: Notice




	 	1.	 	All notices, requests and other communications under this
Agreement shall be in writing;
	 
	 	2.	 	Any above-mentioned notices, requested or other communications
shall be delivered to the valid Registered Address of the Company or
ordinary working or any other appropriate addresses of the Chief
Executive Officer. The above-mentioned notices, requested or other
communications shall be regarded as formally made and effective if it
fits one of the following criteria:
	 
	 	3.	 	If it is delivered in person, it shall be regarded as formally
made upon arrival at the specified address;
	 
	 	4.	 	If it is delivered by mail, it shall be regarded as formally
made 5 working days after its delivery date.
	 
	 	5.	 	If it is delivered by facsimile, it shall be regarded as
formally made upon the sending of the facsimile.




 









 





Section Fourteen: Miscellaneous




	 	1.	 	If the provisions under this Agreement are in contradiction
with the Articles of Association of the Company, the Articles of
Association prevails, except otherwise specified in the laws.
	 
	 	2.	 	This Agreement constitutes the entire understanding between the
Company and the Employee relating to the employment of the Employee
by the Company, and supersedes and cancels all prior written and oral
agreements and understandings with respect to the subject matter of
this Agreement. No amendments shall be made to this Agreement unless
the amendments are agreed to in writing and signed by the parties.
This Agreement shall be binding upon and shall inure to the benefit
of the Employee, the Employee’s heirs, executors, administrators and
beneficiaries, and the Company and its successors, subject to the
terms and conditions set forth herein.
	 
	 	3.	 	This Agreement is written in both Chinese and English. Both
languages are equally authentic.
	 
	 	4.	 	Parties shall negotiate and determine upon issues that are not
specified in this Agreement.
	 
	 	5.	 	This Agreement shall be effective upon the signing and stamping
by the parties.
	 
	 	6.	 	This Agreement shall be signed in two counterparts in both
Chinese and English, each of which shall be deemed an original and
held by each of the parties.




	 	 	 
	 
	 	 
	Guangxi Yuchai Machinery Co., Ltd

	 	Wang Jianming
	 
	 	 
	Signed by The Legal Repr.

or Authorized Repr.:

	 	Signed By: (Gao Jialin)